Legislative and Regulatory Reform Bill - Standing Committee A

[Sir Nicholas Winterton in the Chair]

Legislative and Regulatory Reform Bill

Nicholas Winterton: It is a lovely day, and I hope that this morning’s consideration of this important Bill will be very satisfactory.
I had hoped to be in the Chair this afternoon, but I have received a surprise invitation to appear on “Question Time”. [Hon. Members: “Hear, hear.] I think that one of my colleagues is ill. Notwithstanding that, it is an opportunity not to be missed. I was first likely to be invited in 1979, when the Conservatives were in opposition, but we won the subsequent general election, and I was not invited because I was not and never have been a Front Bench spokesman or Minister. Having said that, I hope that my co-Chairman will be able to make it this afternoon.

Clause 1 - Purpose

Question proposed [28 February], That the clause stand part of the Bill.

Question again proposed.

Nicholas Winterton: With this we are taking the following:
Amendment No. 55, in clause 18, page 9, line 30, at end insert—
“‘reforming” means repealing, simplifying or clarifying or making better provision for achieving its purposes;’.
Amendment No. 61, in clause 18, page 9, line 35, at end add—
‘(2) In section 1, ”changes” means only those changes that are reasonably related to developments in the common law since the date of the Law Commission’s Recommendation.’.
New clause 2—Reserved areas of competence—
‘(1) Schedule [Reserved areas of competence] shall have effect.
(2) A Minister may not make an order under section 1 containing provisions relating to the reserved areas of competence as set out in Schedule [Reserved areas of competence].
(3) A Minister of the Crown may, subject to a resolution of both Houses of Parliament, amend by order the reserved areas of competence in Schedule [Reserved areas of competence].’.
New schedule 1—Reserved areas of competence—
‘For the purposes of this Act, the reserved areas of competence are those relating to—
(a) provisions incompatible with the European Convention on Human Rights;
(b) the Human Rights Act 1998 (c. 42);
(c) Parliament;
(d) the Civil Service;
(e) the courts;
(f) the registration and funding of political parties;
(g) international relations;
(h) defence;
(i) treason;
(j) terrorism; and
(k) national security.’.

Oliver Heald: I wish you every success with “Question Time”, Sir Nicholas. I am sure that the whole Committee would say that it is long overdue. I do not suggest that the Programming Sub-Committee should reconvene so that we can watch it, but we would enjoy it. By then—who knows?—we may find one of our distinguished colleagues as leader of the Liberal Democrats later today.
The question whether the clause should stand part depends on whether the terms and conditions for making an order under clause 1 are acceptable. It would therefore be necessary for the Government to assure us that the effect of an order made under clause 1 would be deregulatory in effect, or that it would involve a non-controversial simplification of the law or the introduction of a non-controversial Law Commission Bill. Sadly, the Minister has so far not been able to provide such an assurance in the Bill.
New clause 2 is an attempt to remedy the problem. In our first attempt to remedy it, we tried to define what should be the purpose orders made under clause 1, our amendments suggesting that the purpose should be deregulatory. In new clause 2 and new schedule 1, we suggest limiting the subject-matters to be covered by such orders. The powers granted in part 1 are wide, so new clause 2, which is based on the recommendations of the Regulatory Reform Committee, suggests that the limitation of powers should be similar to that which applies to the Scottish Parliament. I have gone a little further by adding some variations and additions. It is an amendment on which I think we should be able to agree.
The principle of allowing Ministers to amend existing legislation by order to remove regulatory burdens has been well established in law for some years. However, certain areas of policy are of a higher order of concern than others. For example, it may be perfectly reasonable for a law relating to housing regulations to be amended by order, with a lower level of parliamentary scrutiny; but it would be entirely different for laws relating to our constitution or our civil liberties to be altered by order. The reserved areas of competence suggested in new schedule 1 are so important that they should be excluded from the powers set out in clause 1. The Minister might argue that a matter relating to terrorism involves only a technical change and should therefore come within the order-making power for convenience. My argument, however, is that some areas of jurisdiction are so important that only full parliamentary procedure will do, even if the change concerned is minor.

Andrew Love: Would not the hon. Gentleman consider freedom of information to be such an area of cardinal importance?

Oliver Heald: I do think that it is an important area and I would be happy to discuss with colleagues in Committee or elsewhere exactly which areas should be reserved. The hon. Gentleman may be right that we  could go into the area that he mentioned, and amendments that we shall probably discuss later today go into others that I have not included in my list, such as the Church of England. I am not saying that the list is proscriptive and I would be happy to look at other proposals. Freedom of information is important and my party supports it. We have been critical of the operation of the Freedom of Information Act 2000 and of the huge delays that have built up in some of the processes involved.
 To continue with my point about reserved areas of competence, provisions that are incompatible with the European convention on human rights should not be made by order. The convention contains vital rights and freedoms, including provisions protecting everybody’s right to life and ensuring that a person is not deprived of his liberty except in accordance with law. It also provides that the determination of civil rights and obligations or of any criminal charge should be carried out in a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Such rights, which are protected by international law, should not be interfered with through the use of regulatory reform orders.
Similarly, areas relating to the Human Rights Act 1998 should not be amended without full parliamentary debate. The Act makes it unlawful for public bodies to violate the rights in the ECHR unless legislation expressly provides for that, but would the declaration of compatibility requirement in section 19 of the Act apply to orders made under the Bill? We do not know. Amending or repealing without full debate legislation relating, for example, to freedom of thought, conscience, religion or expression or to the prohibition of discrimination would clearly be unacceptable. That would run counter to the Bill’s purpose, and safeguards should be put in place to prevent it. The Human Rights Act and the ECHR secure fundamental rights and liberties in our constitution, and we should make changes only after the fullest debate, with Parliament able to scrutinise matters fully.
The third reserved area of competence in new schedule 1 relates to Parliament. The Bill should not confer the power to interfere with legislation of a constitutional nature, such as the Parliament Acts, without full parliamentary scrutiny. At a time when there is much debate about constitutional matters, such as the reform proposals for the House of Lords, we should not allow such constitutional reforms to be effected by means of a fast-track procedure. In the recent case of Jackson and others v. Her Majesty’s Attorney-General, which concerned the validity of the Parliament Act 1949, the Court of Appeal cast real doubt over the use that could be made of the Parliament Act 1911 to effect significant constitutional change in the future. The House of Lords eventually disagreed with the Court of Appeal, but the issue provides a useful warning against implementing legislation on constitutional matters by means of anything other than the fullest possible procedure.
I turn now to the fourth reserved area. The Minister said in evidence to the Regulatory Reform Committee that he would not want a regulatory reform order used to tackle issues such as the Parliament Acts. If that is the case, I do not see why we should not have that provision on the face of the Bill.
The fourth reserved area of competence is the civil service. There is much discussion at the moment about civil service reform and Sir Gus O’Donnell has indicated his desire to see a new code in place. Clearly, that is an important matter. We have raised it on the Floor of the House on a number of occasions. I presented a Civil Service Bill last year and unfortunately it was blocked by the Government, but we had a good debate. It seems to me that when we are trying to control the Executive and their operation with the civil service, such matters should be discussed in Parliament in the normal way. That process should not be short-circuited.
Legislation about the courts should also be a reserved area of competence. Acts such as the Constitutional Reform Act 2005, which put in place the Supreme Court, the Criminal Justice Acts and the Bail Acts are constitutionally important, or can be, and any repeal or amendment of them should be carefully scrutinised. We should not allow the possibility that small but potentially significant changes to such legislation may be made by order. Even if the modification that is being made is only minor, it is often important to put it in context and to appreciate that there can be the law of unintended consequences. In areas such as this, which are of the highest importance, it is right that the proper procedure should take place so that as we discuss them over a period of time the difficulties can emerge.
The other reserved areas of competence in the schedule—the registration and funding of political parties, international relations, defence, treason, terrorism and national security—are controversial, or can be, and should therefore lie outside the scope of the Bill. The schedule that I propose is not exhaustive; some Acts of constitutional importance might not be protected in the list that we could discuss. There may well be other matters. I was going to mention the Freedom of Information Act, which has already been mentioned, but the same point could be made for the Immigration Act 1971 and the Church of England Assembly (Powers) Act 1919. Indeed, I am open to the idea of expanding new schedule 1 to cover other important areas.
The important thing is to provide safeguards within the Bill that limit its scope of application to that which it was intended to cure: the over-regulation burden that affects businesses and the need to simplify our law and even to have post-legislative scrutiny of it and to change it, but only if the areas are not controversial. The common perception that Executive power is being ever increased at the expense of due democratic process should not be dismissed. The powers conferred by the Bill as drafted are too wide and this schedule of reserved areas would play an important part in restricting the scope of the Bill to its fundamental purposes: the facilitation of deregulation,  simplification and the ability to pass Law Commission Bills provided that they are non-controversial. That is why we have tabled the new clause and schedule, and I would be interested to hear the Minister’s reply before commenting further on the question of clause stand part.
I believe that we are about to hear also from the Liberal Democrats about amendments Nos. 55 and 61. I will not speak at any length about those, except to say that they both make an important contribution to the debate and I can see that they are in line with the thinking that has already been demonstrated by the hon. Member for Somerton and Frome (Mr. Heath), which I largely agree with.

David Heath: Good morning, Sir Nicholas. You are absolutely right that it is a splendid morning, and I hope that this afternoon continues in the same way.
I rise to speak on clause stand part and to the two amendments tabled in my name and that of my hon. Friend the Member for Cambridge (David Howarth). I want to say at the outset that without amendment, clause 1 should not stand part of the Bill. Indeed, the Bill cannot proceed if clause 1 stands part in its present form. That is the crux of the argument between Opposition parties and the Government—an argument that will carry a great deal of weight in another place if the Bill should proceed that far. From our point of view and also that of the Minister, it is important that we get this right—ideally today, but certainly on Report.
A reason why the clause will not do is the laxity and latitude in the definitions of the terms used. As we have already said clearly and as my hon. Friend the Member for Cambridge has explained at some length, the provisions give an astonishing degree of power to the Minister of the day. We must be absolutely clear that we cannot proceed on the basis of this particular Minister’s assurances and assertions, however engaging he is and however benign his intentions, because it is not he who will decide how those terms will be interpreted in future. Even if he were to remain in the post of Deputy Chancellor of the Duchy of Lancaster for a great many years, it is by no means clear that the great officers of state would defer to the Deputy Chancellor of the Duchy of Lancaster in their interpretations of the terms in the Bill. We need better definitions if we are to proceed.
The first term that comes to mind is the rather woolly term “reforming”. Everybody is in favour of reform. The Conservatives used not to be in favour of it, but I gather that they now are. We look forward to hearing you on the airwaves later today, Sir Nicholas, as the embodiment of new conservatism. Reform is generally considered a good thing; it connotes something that we should encourage.
Reform without definition, however, means little. My hon. Friend and I tabled amendment No. 55, so that we can be clear about what reform means. It does  not mean inventing a new law because it happens to seem a good idea at the time. It does not mean avoiding the parliamentary process because parliamentary time or proper scrutiny might have inconvenient repercussions. Reform means doing what the Minister has said the Bill is intended to do, and making sure that it does only what the Minister has said it will do. That is the purpose of amendment No. 55.

Andrew Love: The hon. Gentleman includes “making better provision” in his definition of “reforming”. That seems rather subjective. It will get him into the same problem that he has with the present definition of “reforming”. How can one possibly define “making better provision”?

David Heath: The hon. Gentleman has a perfectly valid point. It is like the old saying that fleas have smaller fleas upon them; it is a progression ad infinitum. One can hope only to improve the definition and not to create a final definition, because at the end of the day, whatever the definition, it must be interpreted. I am saying that the present definition is almost a non-definition. It is simply the term “reforming”, without any explanation of what that might mean.
It is proverbially difficult to put into statute in a justiciable way matters relating to the process of legislation. We know that, so all that we can hope to do is refine areas of future consideration rather than make an entirely watertight definition. I accept the hon. Gentleman’s criticism that there is still latitude in the definition. Indeed, the Minister might feel that it is right that it should have some latitude. Our definition narrows the scope, which would be beneficial to the Bill.
Amendment No. 61 is an attempt to put into the Bill exactly what the Minister told us on Tuesday was his intention, so he cannot possibly have any difficulty with the amendment. Our great concern was that allowing the term “changes” in relation to Law Commission recommendations would effectively give a Minister carte blanche to put into law anything relevant to the commission’s recommendations that suited the purpose of the Government of the day, rather than the commission’s actual recommendations. I still have enormous concerns on the matter, and there is a problem of defining what comprises a recommendation of the Law Commission.
I also have some difficulty with the basic argument that there is never legislative time to deal with Law Commission recommendations. For my sins, having dealt with home affairs and constitutional affairs in the House for a good many years, I know that there is never a time when there are not two or three Home Office and Department for Constitutional Affairs Bills being dealt with. There is never a year when there is not a Criminal Justice Bill that is said to be the end to all Criminal Justice Bills and the answer to crime. Sometimes there is then another Criminal Justice Bill the next year that undoes some of the provisions of the  previous year’s Bill before they have even come into force, and we wonder why we bother. To say that there are no legislative vehicles for basic Law Commission recommendations, particularly in the area of criminal law, is therefore a criminal assertion and simply not true.

Alison Seabeck: I follow the hon. Gentleman’s argument with interest. Will he clarify what the test of reasonableness would be under the amendment?

David Heath: It is not about whether the developments are reasonable, but about whether they are reasonably related. As the hon. Lady knows, that is a term well known in law and in statute. Normally this argument works in the other direction, with the Opposition parties asking the Minister what “reasonably” means in statute and the Minister saying that the meaning is absolutely clear under all circumstances.

David Howarth: We are practising.

David Heath: As my hon. Friend says, we are practising for the role. One can refer only to the word “reasonably” as the test; it provides at least a back-stop of justiciability, although I accept that it is not entirely simple. Given that the Minister asserts that there is a mad time lag of seven and a half years, which I think is avoidable through the machinery of government and the number of Bills that go through, there are occasions when it would be convenient to the House, not to the Government, to have a process by which Law Commission proposals can be dealt with expeditiously.
When we challenged the use of the term “change” in relation to recommendations, the Minister was clear that there were circumstances in which he could envisage change. He said in Committee on Tuesday:
“If the Government were seeking to introduce a Law Commission recommendation that had been amended substantively, this Bill would not be the way to do it.”
No, it would not. We agree with him on that. He went on to say:
“We are talking about implementing non-controversial Law Commission recommendations ... to which there has been amendment not on policy, but based on the fact that law has evolved in the interim.” —[Official Report, Standing Committee A, 28 February 2006; c. 35.]
I have to accept that the Minister is entirely right on that point. There may be cases in which common law has evolved since a recommendation was made, although one assumes that the whole purpose of the proposal is to reduce that time substantially so that we do not have those time lags. Otherwise there is no point in having the provision. However, there may be circumstances in which there has been an evolution in common law since a Law Commission proposal that requires minor amendments, in the spirit of the recommendation, before being introduced into law.
Amendment No. 61 allows the Minister to do that—exactly what he says he wants to do—in what he says  are the only circumstances in which he would wish to change the Law Commission’s recommendations. On Tuesday, he went on to say the following:
“It would not be appropriate for the type of Law Commission recommendation mentioned by the hon. Member for Cambridge, or the Government’s response to it, to be delivered through the Bill. I hope that that reassures him somewhat.”—[Official Report, Standing Committee A, 28 February 2006; c. 35.]
Well, I suppose that we would be reassured if that was written in the Bill. If it is not, we come back to the point that whatever the good intentions of the current deputy to the Chancellor of the Duchy of Lancaster, we cannot be assured that a future Minister, of whatever rank, would take the same view. We rely therefore on not the assertions of Ministers, but on what is written in the statute. That is the importance of amendment No. 61.

Christopher Chope: I congratulate the hon. Gentleman on ensuring that we debate the matter so early on because it puts the Minister on the spot. In our previous proceedings, the Minister conceded that the only purpose of clause 1(1)(b) is to cover the situation in which the Law Commission’s recommendations would
“impose penalties or create new powers of forcible entry above the usual limits under clauses 6 and 7.”—[Official Report, Standing Committee A, 28 February 2006; c. 34.]
So there are only very special circumstances in which clause 1(1)(b) will be relevant. In light of that, does the hon. Member for Somerton and Frome think that the Minister should accept the amendment?

David Heath: Of course the Minister should accept it, and it goes without saying that he will because it is phrased in almost exactly the words that he used and simply puts into statute what he intends to be the result of the enactment.
New schedule 1 is tabled by the hon. Member for North-East Hertfordshire (Mr. Heald). He is right: it deals with definition again—in this instance, the definition of those things excluded from the terms of the Bill. Clearly there are things that should not be subject to the procedure. He attempts to tackle the problem with classes of enactment. My hon. Friend the Member for Cambridge has tabled a new schedule in a later group of amendments which deals with the problem by specifying statutes. Both are acceptable ways to deal with it. The difficulty, in part, with the hon. Gentleman’s treatment is that again it would be arguable whether a statute falls into one class or another. Perhaps not in the technical parliamentary term, but in a normal use of the term, it might be a hybrid between classes of enactment. However, it does provide valuable protection.

Oliver Heald: I do not know whether the hon. Gentleman agrees, but the advantage of new schedule 1 is that it covers a class of legislation, so there is no need to update it, over the years, as new Acts are introduced. The advantage is that the class would be covered. I agree that there is a definitional issue, but we did the same thing with the Scotland Act 1998, and I think, by and large, that has worked quite well.

David Heath: I agree entirely, although in the case of the 1998 Act there is an arbitrator who determines the situation. It is not clear where the arbitration would come in this case, other than a challenge within Parliament. The hon. Gentleman makes a valid point, however. I do not want to pre-empt the discussion on the next group of amendments, but using classes is a satisfactory way to proceed. Some statutes, such as habeas corpus and Magna Carta, ought to be written, if not in stone, certainly on vellum. I am not sure what the Magna Carta was written on, but I suspect that it was vellum, which was, famously, signed. We will support him he wishes to push the matter to a Division.
I finish with the point on which I started. The matter is critical. If we do not get clause 1 right we do not get part 1 right and the Bill will not proceed. The ball is in the Minister’s court. He can either listen and respond or he can ignore us, set his face against change and eventually lose his Bill.

Mark Harper: I agree with my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Somerton and Frome that whether clause 1 stands part of the Bill is crucial. This is a test of the real intentions behind the Bill. The Minister said both in Committee and on Second Reading that the ambition is limited in scope to a deregulatory agenda. If he means that—I am sure that he does—and, more importantly, if the Government as a whole mean that and we can be assured that it will remain true of future Governments, it needs to be put on the face of the Bill. It should be in statute so that we are not simply relying on assurances that have no weight. If he has listened to the debate so far and accepts some of the amendments, we will be reasonably content. If he resists, it would be difficult not to conclude that there were other reasons—perhaps more sinister ones—behind the Bill.
On amendment No. 55, I spoke about the use of the word “reforming”. Despite what the hon. Member for Somerton and Frome said, Conservatives have always been in favour of reform as long as it is a change for the better. Admittedly “better” is a matter of opinion, but we are not in favour of change for change’s sake. I have concerns about the use of the word “reforming” because it is one of those words that can be used in a very new Labour way. It can be attached to whatever change one wants to introduce to make it seem a nice change, a good change and a change for the better, when many would in fact consider it a change for the worse.
I welcome the attempt by the hon. Members for Somerton and Frome and for Cambridge to tighten up that definition and at least to rein it in a little. It makes the focus of the Bill much more a primarily deregulating one, although as the hon. Member for Edmonton (Mr. Love) pointed out, the phrase “making better provision” does rather blur the focus introduced in the previous part of the definition.
On new clause 2 and new schedule 1, I want to touch on one or two things on which my hon. Friend the Member for North-East Hertfordshire did not dwell at length: international relations and defence.  International relations would clearly cover treaty-making powers, and we are all aware of the huge constitutional significance of European treaties and changes thereto. We want to be clear that that is outside the Bill’s scope.
On paragraph (h), given the current discussion about the Government’s ability to declare war and whether that should be subject to votes in the House, war-making powers should be excluded from the Bill and the new schedule is entirely sensible.

Oliver Heald: My hon. Friend makes an important point. Clause 2(5) specifically allows a decision to be made on whether royal prerogative matters should be subject to parliamentary approval. In other words, the whole subject of royal prerogative could be dealt with under clause 1 because of the wording of clause 2(5). So very important matters to do with whether treaties or war-making decisions need to be ratified by the House could be dealt with by order.

Mark Harper: I thank my hon. Friend for that perceptive point, which supports my argument that many aspects of the Bill could inadvertently broaden its scope beyond even what we have discussed so far. He reinforces the case for limiting the measure.
I do not want to stray on to new schedule 2. The advantage of new schedule 1 in relation to reserved areas of competence is that it is a more elegant approach. That is partly because it saves any need continually to update the legislation. Also, as our discussions in the previous sittings suggested, the question of what the House wants to exclude will be relevant. If we want to exclude Acts of Parliament of a local geographical nature, the alternative way of dealing with reserved matters—by Act—would be an enormous task. However, we can consider that in more detail under the relevant provisions.
It is wise to establish reserved areas of competence, notwithstanding definitional problems and the lack of a suitable arbiter. It would at least considerably reduce the scope of the Bill and greatly clarify its focus on the deregulatory, cost-reduction and burden-reduction exercises that the Minister says are its primary purpose. I can see no particular reason—although the Minister may want to amend the reserved areas of competence and suggest additions and deletions—why, in principle, a new clause and new schedule of the kind we have tabled would be objectionable, if the Government’s objectives for the Bill are as he set out.

Nicholas Winterton: I do not in any way want to limit debate, but I am conscious of the fact that by 10.25 we will have completed three sittings, and we are still considering clause 1. I accept that it is an important clause, but I want other matters in part 1 to be given adequate time for debate.

Christopher Chope: On a point of order, Sir Nicholas.

Nicholas Winterton: How can there be a point of order? I am, however, happy to take what the hon. Gentleman perceives to be a point of order.

Christopher Chope: Following your suggestion, Sir Nicholas, that we should try to concentrate our attack on the issues between the Government and members of the Committee, might not it be helpful if the Minister now let us know whether he is prepared to accept any of the amendments? If he is prepared to do that, it might foreshorten the debate.

Nicholas Winterton: I am not sure that that is a point of order, but it is an interesting matter to raise—perhaps a point of debate. I think that it would be appropriate for the Minister to reply when members of the Committee have expressed their views, so that he can wind up the debate properly. I call the hon. Member for Plymouth, Devonport (Alison Seabeck).

Alison Seabeck: Actually, I shall turn down your kindness in calling me, Sir Nicholas, and perhaps intervene on the Minister with the point that I intended to make.

Nicholas Winterton: I am sure that the Committee is grateful to the hon. Lady.

David Howarth: I want briefly to comment on amendments Nos. 55 and 61, and to make a couple of points about new clause 2 and new schedule 1. I will then make one or two preliminary points relevant to the stand part debate, before the Minister responds.
Amendment No. 55 would restrict the definition of the word “reforming” so that it fits in with Government claims regarding the purpose of the Bill. So far, the feeling seems to be that the first part of the definition—“repealing, simplifying or clarifying”—is of little dispute. I note that the Minister was keen to stress the importance of simplification as one of the Bill’s purposes. That is one reason why “simplification” appears in our proposed definition. The word “clarifying” is in it because making Bills easier to understand and to apply is a matter not just of simplifying them, but of adding words to ensure that what was ambiguous or ambivalent is made clear. Those two functions are important.
I believe it was the hon. Member for Edmonton who first mentioned the last part of the definition:
“making better provision for achieving its purposes.”
I draw the Committee’s attention to the final words—“for achieving its purposes”— which refer to the legislation being reformed. That is the point of this part of our definition: the better provision part is aimed at better achieving the purposes of the previous legislation. The wording exists because the reform of Acts should be restricted to fit with what Parliament originally intended them to achieve.
One main part of parliamentary procedure with which the Bill would dispense is the Second Reading debate. That is a debate about the principle of a proposal and the policy purposes for which it has been introduced. If a reform brings new policies, aims or objectives into effect, we need a Second Reading debate because we need new authorisation from Parliament for the new policy. That can be done only by introducing new primary legislation.
The Minister spoke about new schemes of regulation. If a new scheme is aimed at achieving what the existing legislation was meant to achieve, it is perfectly acceptable to introduce it in an order, but if it involves new policies or aims, we need primary legislation and discussion on the Floor of the House. I hope that we can make that into a constitutional principle so that new policies mean new primary legislation.
My hon. Friend the Member for Somerton and Frome clearly laid out the aims of amendment No. 61. The point that the Minister tried to make on Tuesday was that it is possible for changes in common law to overtake a Law Commission report, recommendation or draft Bill, and that the Government’s only purpose in proposing to allow orders to be made under the Bill to change Law Commission recommendations is to deal with that problem. Amendment No. 61 deals with that directly and would put the Minister’s idea into the Bill. The notion of “reasonably related” is as clear as one can make an idea in legislation, although I suppose that we should be frank and say that one reason for putting “reasonable” or “reasonably” into any legislation is to signal to the courts that we intend that concept to be justiciable, although they might decide that it is not.
Let me comment briefly on new clause 2 and new schedule 1, tabled by the hon. Member for North-East Hertfordshire. The debate so far has been about whether there is any difference or important contradiction between a subject matter restriction on the use of the Bill, which refers to areas of policy, and one that refers to specific Acts of Parliament. Both are necessary; the Committee will see that, among the amendments that we hope to debate in relation to clause 2, we propose both specific Act of Parliament restrictions and areas of law restrictions. That might seem like a belt and braces approach, but it is well worth while, given the constitutional importance of the matters that we are discussing. When we reach those amendments, we shall propose a combined version of such ways of limiting the Bill.
May I echo on stand part what other members of the Committee have said? If the Minister does not accept new clause 2 and new schedule 1, at least in principle, will he give us an assurance that he will bring forward Government amendments that are better drafted than those that we have managed to achieve with the meagre resources at our disposal? If he does not, the Committee should not vote in favour of allowing this clause to stand part of the Bill. We are spending so much time debating clause 1 because the power granted by it is so extraordinarily wide, allowing Ministers to change by statutory instrument any statute and any common law rule mentioned in the Law Commission’s recommendations.
The Bill reverses seven centuries of constitutional development, the main theme of which—until very recently—was the transfer of legislative power from the Executive to Parliament. In the 17th century, our predecessors in this House fought and won a bloody civil war against a king who thought that the views of  Parliament should be disregarded. Later in that century, we removed another king whose main offence was that he claimed to be able to dispense with and change laws at will. Of course, that was before the rise of the modern administrative state and the complexities of modern law-making. However, even then, with those developments, Parliament’s main principle was that policies and principles should be decided through primary legislation, and it would be left to Ministers to detail in subordinate legislation how those policies and principles would be put into effect. That is what amendment No. 55 is for. It aims to restrict the effect of the Bill to allowing the Government to bring forward by subordinate legislation better ways of achieving policies and principles that have been approved by Parliament in the full legislative way, which we should keep to.
I hope that the Minister can see that that is why there is so much concern about clause 1—at least on this side of the Committee, and I think on the other side, too. We are being asked to approve a power that is broader than anything that has been granted by Parliament in peacetime.
In fact, it could be argued that it is broader even than that which was granted by Parliament in wartime. Even the powers under the Emergency Powers (Defence) Act 1939, which is usually given as the great example of Parliament granting extreme powers to the Executive, the powers were limited to the defence of the realm and related matters. Clause 1 is broader even than that. I urge the Committee to reject the clause if the Government do not provide adequate assurances about changing the Bill.

Christopher Chope: I absolutely agree with what the hon. Gentleman has just said. The Committee is indebted to him for bringing some of the constitutional and historical background to bear on this very important debate. Sir Nicholas, you will not take the Chair for this afternoon’s proceedings, but there is no limit on how late we can sit this evening, although the Committee might want to adjourn to listen to you on the media at about 10 pm. The programme motion does not restrict the amount of time for which we can sit today, although it does next Thursday. Given the constitutional significance of this measure, I am sure that we would not want to restrict ourselves unnecessarily under a guillotine, although as always I shall exercise restraint in the amount of the Committee’s time that I take up.
The title of clause 1 is “Purpose”. The Government have given the impression of activity and concern about the growing burden of regulation, and that is probably their main purpose—to give the impression of activity and concern. They are also keen to use the measure as a means of removing the burden on Government and Ministers in relation to changing the law, and their concern to do that is greater than their concern to remove the legislative or administrative burden on industry. That is clear from an article in yesterday’s edition of The Daily Telegraph. The headline was, “Red tape bill hits £50bn”. The  subheading was, “Total burden since Labour came to power is on track to reach £100bn by 2011 even if no new regulations are introduced”.
The Minister was asked to comment on the conclusions of research by the British Chambers of Commerce that was based on official figures, and he responded by defending the Government’s record. If the Minister’s state of mind leads him to defend the Government’s record when they have increased the burden of regulation and the costs on industry—a far greater cost, incidentally, than the annual revenue from corporation tax—that gives us an insight into the true motives of the Government in introducing the Bill.

Mark Harper: My hon. Friend makes an excellent point. I alluded to this in a previous debate. Part of the reason for the extraordinary growth in the costs and burden on business is the use by Ministers of powers to make secondary legislation such as orders. Fixing that problem does not require Ministers to be given even wider powers to make even more rules by order; we should be reducing their ability to do so.

Christopher Chope: Absolutely. All the examples that the Minister has given during the debate on clause 1 have been of things that will make life more complicated for industry, rather than reduce burdens.

Ian Austin: If the Government really are waging war on industry, as the hon. Gentleman would have us believe, why have we enjoyed the longest period of economic growth? We have avoided recessions that have affected every other industrialised nation and there are more people in work in this country than ever before.

Christopher Chope: I do not want to go into a great history of the consequences of the Thatcher revolution, but that revolution created the dynamic economy from which we are benefiting.

Ian Austin: Will the hon. Gentleman give way?

Christopher Chope: I will not give way again until I have had a chance to respond to the hon. Gentleman’s first point, although I welcome his active participation in the Committee’s proceedings.
The Thatcher revolution created a dynamic economy which has been gradually eroded by the increasing burden of regulation introduced by this Government. I think it was not a Minister who admitted it but a commentator who said that the new clause IV is Government regulation, which is exactly how many people in industry see it.

Ian Austin: Can the hon. Gentleman explain why under the previous Conservative Government this country was plunged into two of the longest recessions since the war? Three million people were unemployed and millions of businesses closed. How does the hon. Gentleman explain that?

Christopher Chope: I do not have to explain it. [Hon. Members: “Yes you do.”] Going back to 1991, this country’s economy has been growing as a result of the Conservative Government’s deregulatory measures.  The hon. Gentleman seems complacent about the latest figures, which show this country declining in the world competitiveness league, productivity at its lowest rate since the Government came to office, the economy in gradual decline—not dramatic decline but gradual decline—and that we are losing our competitive edge. That illustrates the hon. Gentleman’s complacency.
I ask the question rhetorically: does the hon. Gentleman not accept that there is a problem of over-regulation of industry? His party’s line is that there is a problem and that the way to address it is to introduce the draconian powers in the Bill. If the hon. Gentleman does not even concede that there is a problem, perhaps he will join us in voting against clause stand part.

Andrew Love: I agree with the hon. Gentleman that there is a problem of regulation. Does he agree with me that at the height of the so-called Thatcher revolution, Ministers talked about “a bonfire of regulations”, but at the same time there was a record introduction of new regulation, contradicting all the so-called Thatcherite virtues?

Christopher Chope: I agree with the hon. Gentleman. This problem happened after Margaret Thatcher left office. Between 1992 and 1997, when I was no longer a Member of this House, the Major Government were interested in reducing the burden of regulation. I had the pleasure of serving on a deregulation task force to which I was appointed by the then Secretary of State for Trade and Industry, now Lord Heseltine. I was also on the Health and Safety Commission and saw with my own eyes the difficulties in trying to reduce the burden of regulation while at the same time maintaining proper standards of health and safety. The approach then was to try and rein back on detailed regulation and to introduce goal-setting regulations in the broader sense instead of having a minutiae of regulation.
Some progress was made during that period in reining back on regulation although nothing like as much as I would have wished. Since then, this Government, instead of relying on goal-setting regulations has implemented an enormous amount of detailed, prescriptive regulation, and that is the big burden on industry, which is getting worse. It got a bit better between 1992 and 1997, although new regulations were still being introduced, partly at the insistence of the European Union.
We could now revert to goal-setting, rather than prescriptive, regulation and if I heard the Minister saying things like that I would have more confidence that his purpose is to reduce the burden on industry, but nothing that he has said suggests that that is his purpose.

Mark Harper: The hon. Member for Edmonton makes a good point—perhaps inadvertently. We have touched on it before; it is about the culture of Government, regardless of who is in power. The civil service, and Government generally, like proposing  regulations; that is their purpose. The point is that, regardless of who is in power, granting wide order-making powers to Ministers makes it difficult, regardless of their intention, for them to stop the Government machine and bureaucracy spewing out, by order, lots of complicated regulations.
That is why I do not see the solution as the granting of wider powers. I am sceptical that unless there are limits in the Bill, and unless the direction of travel toward deregulation is written into it, the likelihood is that the Government machine and bureaucracy will use the powers to generate even more regulations and burdens, rather than the reverse.

Christopher Chope: My hon. Friend is right. I want to conclude the present little discussion by saying this.

Ian Austin: Will the hon. Gentleman give way?

Christopher Chope: Let me just make this point. An example of what I mean is where a prescriptive regulation has been brought in instead of a general regulation. There is a standard duty, under the health and safety at work legislation, for employers to look after the health and safety of their employees. Yet the present Government brought in the Work at Height Regulations 2005, which are unduly prescriptive, which is why it now costs £200 to change a light bulb to comply with the regulations. That is barmy, it lacks common sense, and it is disproportionate. If I had heard the Minister say that he was going to repeal the Work at Height Regulations I would have a little more confidence as to his motivation.

Ian Austin: Could the hon. Gentleman tell me which regulations were introduced during the period when he was in office as a Minister, that he now regrets and thinks were wrong, and should not have voted for? Instead of reading out press cuttings and subjecting us to the tired old rant about regulation, let us have a few more specifics. Can he give the Committee a dozen regulations that have been introduced by this Government that he thinks should be reversed?

Nicholas Winterton: Order. This is becoming a speech, not an intervention. The hon. Member for Christchurch (Mr. Chope) has the point.

Christopher Chope: I have the point, and I look forward to hearing the hon. Gentleman’s speech in due course. I fear that he will have to wait for the publication of my memoirs before he gets the full list of all the things about which I made a mistake in the six or so years that I was a Minister. This is an interesting diversion, but it does not allow us to get to the core of the debate.

Oliver Heald: My hon. Friend will be aware that just before the last election, the Conservatives published a document with 63 different proposals for deregulation. Would that not be a good starting place?

Christopher Chope: My hon. Friend is right, it would be a good starting place, but I fear that by the time of the next general election the list will have to be a lot longer.

Andrew Love: I agree with the hon. Gentleman about the dilemmas of trying to reduce regulation within the Government bureaucracy. However, I was a member of the former Regulatory Reform Committee, and when we expressed concern about the lack of deregulation measures, the civil service response was that it was not worth them presenting measures under the then Act because of the onerous conditions for consultation. They needed something stronger so that the deregulatory measures could be more meaningful. Should we not take that into account in reaching agreement about the terms of the Bill?

Christopher Chope: There may be an element of validity in what the hon. Gentleman has said, but the bigger picture is that we need Ministers in charge of Departments to be strong willed in insisting that deregulation actually happens. The definition of a civil servant is somebody who has a valid objection to any proposal for change, and if deregulation is left to civil servants, we will, as we know, never make much progress. We need ministerial willpower and determination at the top to bring such changes about, and no amount of legislation such as the Bill will do so if we do not have a culture change among Ministers.
I fear that the Government are unwilling to face up to the difference between broad goal-setting regulations and the great tranches of highly prescriptive legislation that they keep implementing. It is burdensome for employers—particularly small ones—simply to read through such legislation to find out what is happening. The Minister says that one purpose of the Bill is to enable these great tranches of prescriptive legislation to be put together in even larger volumes. He says that that will somehow be deregulatory because, instead of six sets of regulations, there will be only one, with all the regulations together in one volume. I fear, however, that that will not be deregulatory and that it will actually add to the burden, particularly if regulations can be amended when they are being consolidated. I am very nervous about that. The Government’s unwillingness to accept the prerequisite that a burden should be reduced before the powers in the Bill can be used and to confine those powers to non-controversial measures makes me extremely suspicious and concerned.
On the other provisions in the group, hon. Members will not be surprised to hear that I am very enthusiastic about amendment No. 61 because it follows on from my amendment No. 29, which we discussed at our first sitting. The Minister may be a bit surprised by the speed with which the hon. Member for Cambridge was able to draft amendment No. 61, but it is now before us. For the first time during our proceedings, the Minister has a chance to accept an amendment, thereby indicating that he is his own man, that he is not beholden to outside powers and that he will not stick with the rather unfortunate phrase that he used, I think, at our second sitting, when he said that the Government were adamant that they would introduce no more safeguards into the Bill.
New clause 2, in the name of my hon. Friend the Member for North-East Hertfordshire, is excellent. If it did not contain subsection (3), it might, in one sense,  be even better. By including subsection (3), however, my hon. Friend is actually making it easier for the Government to accept the new clause. He is telling them, “I’m not asserting that the list in the schedule is comprehensive for all time, and if the Government think that something should be deleted or added, they will have the power to do so.” However, if the Government do not accept the new clause, they will be saying that there should be no restrictions on the areas of competence to which the Bill can apply. That, again, would be a sinister development.
Shortly, we shall have the chance to hear from the Minister and we shall then know whether the Government really are intent on taking more powers than were, as the hon. Member for Cambridge said, included in the emergency legislation in 1939 or whether they are prepared to rein back and provide the safeguards that so many members of the Committee demand.

Jim Murphy: Belatedly, Sir Nicholas, good morning. I am disappointed that you will not be here this afternoon but, having watched your performance at our first sitting, which was broadcast, I am delighted that the BBC has asked you to replace David Dimbleby this evening. [Laughter.] That was very good of the BBC, and I am sure that you will be as impartial in your television role as you have been thus far in our proceedings. I do not know whether you have notes of what you might have said on the programme in 1979—and I have no idea whether they would still be appropriate.
I draw attention to the fact that the Government have tabled minor amendments to clause 27 and two new clauses that will enable the combining of instruments. A brief that outlines the intended purpose of those amendments will be available at the end of the sitting.
The hon. Member for Christchurch, in his own words, sees his purpose as making attacks upon the Government. He was not particularly effective, but he did it in his own way. I look forward to the publication of his memoirs, to which he alluded; they sound to me like they will go straight to Bargain Books.
The hon. Gentleman is, of course, a well known regulator. He was Parliamentary Under-Secretary at the Department of the Environment, and was later Minister for Roads and Traffic at the Department of Transport. He was in government at a time when a thousand companies went out of business every week because of regulation and the economy—interest rates were 15 per cent. for more than a year and above 10 per cent. for four years. He may have been involved in a deregulation initiative, as he suggested, but the Government subsequently introduced 8,100 statutory instruments. In the immortal words of the former leader of the Conservative party, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), the Conservatives were
“less effective in deregulating ... than we should have been.”
The hon. Gentleman is not alone in his failings on such matters. The hon. Member for North-East Hertfordshire (Mr. Heald), too, has a record in Government at the Home Office, in agriculture and elsewhere.

Oliver Heald: And in pensions.

Jim Murphy: And elsewhere; pension mis-selling and all sorts of other things with which he is associated.

Nicholas Winterton: Order. I hope that the Minister’s comment was a debating point and not an allegation.

Jim Murphy: Last evening, when preparing for today’s debate, I saw from the internet that the hon. Gentleman has firm views on regulations concerning the new deal.

Oliver Heald: Yes, I have written about it.

Jim Murphy: I am not sure whether it is a book or a pamphlet.

Oliver Heald: It is a large pamphlet.

Jim Murphy: The problem is that one cannot download it; one has to purchase it.

Nicholas Winterton: Order. We do not want a debate taking place from Members in sedentary positions; it is extremely difficult for the Official Report to record what is going on. If the hon. Member for North-East Hertfordshire, an experienced Member of the House, wishes to intervene, he should rise in his place to his substantial height.

Oliver Heald: The Minister is right; the learned tome is called “Auditing the New Deal: What Figures for the Future?” It is a constructive document. Indeed, more or less all the suggestions that I made in it about focusing the new deal on barriers to the labour market are now supported by the Chancellor.

Jim Murphy: I think that the hon. Gentleman’s assertion is entirely wrong. In his report, learned tome or whatever else it may be called, he suggests that the new deal for young people should be cut drastically, and that support for lone parents should be ended, on the basis that the Government should abandon their attempts to interfere in family life.

Nicholas Winterton: Order. I am very broad-minded, but those comments are not entirely relevant to our debate.

Jim Murphy: Of course, Sir Nicholas, but it would be most helpful if the hon. Gentleman were to provide me with a copy of the pamphlet; indeed, he could double his sales by providing all Committee members with a copy of his learned tome. One of the regulations that the hon. Gentleman wishes to change, in an entirely reactionary way, is the new deal.

Mark Harper: Will the Minister give way?

Jim Murphy: I want to make some progress first, if I may.
Sir Nicholas, I will obey your strictures and return to the purpose of our debate. I want to address amendments Nos. 55 and 61, new clause 2 and schedule 1 as part of the consideration of clause 1. As we know, clause 1 is at the heart of the Bill. It sets the main parameters within which the order-making power would work. The powers under the 2001 Act generally permitted amendment to primary legislation only. That meant that changes to most secondary legislation related to the provision in the order could not be dealt with in the same order. It required a separate statutory instrument.
I turn to the amendments. The proposed amendments identify specific areas that should not be able to be reformed by order. They are an attempt to restrict the scope of the powers in part 1 of the Bill. As I listened to the debate between the Conservatives and the Liberal party, they both acknowledged weaknesses in the amendments and in the new schedule tabled by the hon. Member for North-East Hertfordshire.
I want to address the issue of enlisting enactments of specific subject areas. Bills such as this one often need to contain broad enabling powers. The breadth of the power within the Bill is not an indication of its intended use and we should not forget that any proposed use of the order-making power in part 1 is subject to a number of important safeguards, not least the six on the face of the Bill, the need for statutory public consultation, the fact that the Minister would have to table an explanatory memorandum and of course the fact that the relevant specific, specialist Select Committees of the House of Commons and the other place would have the right to reject any proposal if they so wished. As I said on Second Reading, I intend to provide further reassurance of the Select Committees’ power at the appropriate stage of our deliberations.
It is the Government’s view that all the proposals and suggested orders should be done case by case, on the commitment that none of the proposals should be highly controversial and that all the safeguards and protections, both in specific areas and on specific protocols in Parliament, would be respected. We have built on the proposals of the 2001 Act and gone considerably further.

Christopher Chope: The Minister says that he will provide specific reassurance at a later stage. Does he mean that he will table amendments so that those reassurances are on the face of the Bill?

Jim Murphy: I mean that I will bring forward further reassurance at a later stage.
The Bill is about delivering change to the private and public sectors in the context of the better regulation agenda. It is not intended to reflect far-reaching constitutional changes and there are many ways that that protection will be secured. As I have just mentioned, I will offer specific reassurance about enhanced power for the relevant Select Committees in  this place and in another place. I gave that assurance about the Committees’ power of veto on Second Reading.

David Heath: It is an assurance that he gave at Second Reading and I think that many of us assumed that the relevant point in the proceedings might be the Committee stage of the Bill in the House of the Commons, yet we have seen absolutely nothing. Can he tell us when the relevant point in the proceedings might be? Some of us will become a little impatient if we do not see the amendments that he has promised.

Jim Murphy: All I can say is that the hon. Gentleman should be patient a little longer. The Government will listen to the specific recommendations made in this Standing Committee, as we should, and we will offer further reassurances, perhaps on Report, on the powers of the relevant Select Committees in the Commons and another place. That is the correct way to deal with the matter.

Christopher Chope: Will the Minister give way?

Jim Murphy: I will make progress, if I may.
Clearly, it makes sense to be able to use these powers to make the civil service more efficient. I do not share the views in the tongue-in-cheek—I think—attack on the civil service made by the hon. Member for Christchurch (Mr. Chope). Generally, the civil service needs to be reformed but civil servants throughout the country make an enormous contribution to our civic life and the way in which we are governed. They provide services to many of the most vulnerable people in our community. Notwithstanding the fact that there needs to be reform, I thought that the hon. Gentleman’s attack was ridiculous and over the top.

Christopher Chope: The Minister knows that I was not attacking the civil service; I was attacking weak Ministers.

Jim Murphy: The hon. Gentleman makes his own point.
I turn to amendment No. 55, which is intended to limit the order-making power in clause 1 so that orders reforming legislation can only repeal, simplify or clarify it, or make better provision for achieving its purposes. The 2001 Act mentions reform without having to define it, and that has not caused any difficulties. We do not believe that simply maintaining the ability to reform in this Bill will create any difficulties.

David Howarth: I thank the Minister for giving way. The important distinction between the Bill and the 2001 Act that he has not taken into account is precisely the extraordinary, wide power granted by clause 1. The 2001 Act granted no such power, so it is no wonder that it has not caused any trouble.

Jim Murphy: As I said, the word “reform”, which has been much commented on, was in the 2001 Act; it has been lifted exactly from there. There are important protections and safeguards in both the content and  procedures of the Bill that will ensure that any highly contentious issue that does not have the support of the Select Committees could be rejected. That safeguard will be in place and is appropriate.

David Heath: Will the Minister give way?

Jim Murphy: No; I will make some progress.
I do not see how the definition offered in amendment No. 55 would enable us to make the scope of reforms that we want to make using the order-making power. The definition would restrict the ability to amend legislation to remove burdens or make other beneficial changes of a substantive nature that do not simply clarify or simplify—regarding mergers, for example. I am concerned that the amendment could significantly narrow the range of beneficial measures that could be delivered by order. It might rule out the merger of regulators by order, for which consultation respondents have expressed support.

David Howarth: I am trying to follow what the Minister says. He keeps returning to the point about the merger of regulators, but surely that would come within the definition of
“making better provision for achieving”
the purposes of the legislation concerned.

Jim Murphy: I do not think that the hon. Gentleman was listening to specific comments that I made. I said that reform was part of the 2001 Act and that there will be procedures to ensure that any highly controversial proposal can be rejected by the Select Committees. Ministerial assurances that worked with the 2001 Act are repeated in respect of the Bill.
I turn to the second purpose of the clause: the implementation of recommendations of any of the UK Law Commissions, with or without changes. I congratulate the hon. Member for Cambridge for the speed with which he tabled his amendment, if not the accuracy. As he is aware—perhaps more so than any other member of the Committee—the Law Commission recommendations can refer to changes in common law and to legislation.

David Howarth: I was hoping that the Minister might try to make that point, which is, of course, irrelevant to the amendment before the Committee, which concerns the meaning of the word “changes” only. On Tuesday, the Minister resisted an amendment that would have removed the Government’s power to make changes to Law Commission recommendations because of changes in the common law and for no other reason. The amendment would not otherwise restrict what the Government could do regarding Law Commission recommendations.

Jim Murphy: The hon. Gentleman’s amendment would not only restrict the Government’s ability to implement Law Commission recommendations in relation to the common law—it is fine in that respect. It would also affect recommendations to legislation such as the rules against perpetuities and excessive  accumulations, which was a Law Commission recommendation, the distress for rent rules and the binding order—in 1994, I believe.

David Howarth: Will the Minister give way?

Jim Murphy: No; I am going to make some progress. The hon. Gentleman has made his point several times. The amendment he tabled refers to amendments to common law, but does not refer to Law Commission recommendations in respect of legislation.
Like amendment No. 29, which we debated on Tuesday morning, amendment No. 61 seeks to limit the extent to which a Minister may change a Law Commission recommendation when implementing it by order. As I explained on Tuesday, when we had a full debate on this point, the ability to make changes—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at One o’clock.